WILLIAM DEWBERRY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A trial judge cannot depart from the presumptive guidelines range and impose a sentence within the statutory limit based solely on an arrest for a new crime that constitutes a probation violation, if the defendant has not been convicted of that new crime.
Defendant's probation was revoked based on an arrest for sexual battery, and he was sentenced to five years imprisonment, departing from the guideline…
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PER CURIAM.
We have for review Dewberry v. State, 537 So. 2d 669 (Fla. 1st DCA 1989), which conflicts with Lambert v. State, 545 So. 2d 838 (Fla.1989). We have jurisdiction. Art. V, § 3(b)(3), Fia. Const. We quash the decision of the district court.
Dewberry was adjudicated guilty of possession of cocaine and placed on five years’ probation. Following his arrest (without conviction) for sexual battery, the court revoked his probation and, departing from the guidelines range of twelve to thirty months, sentenced him to five years’ imprisonment for the original offense based on his probation violation. The district court affirmed, but certified the following question:
WHERE A TRIAL JUDGE FINDS THAT THE UNDERLYING REASONS FOR VIOLATION OF COMMUNITY CONTROL OR PROBATION CONSTITUTE MORE THAN A MINOR INFRACTION AND ARE SUFFICIENTLY EGREGIOUS, MAY HE DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT EVEN THOUGH THE DEFENDANT HAS NOT BEEN “CONVICTED” OF THE CRIMES WHICH THE TRIAL JUDGE CONCLUDED CONSTITUTED A VIOLATION OF HIS COMMUNITY CONTROL OR PROBATION?
We have answered this question in the negative in Lambert. The one-cell bump-up provided for in the guidelines is the only allowable increase. See Fla.R.Crim.P. 3.701(d)(14).
Accordingly, we quash the decision of the district court and remand for resentencing within the guidelines.
It is so ordered.
EHRLICH, C.J., and McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. OVERTON, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Kramer v. State, 550 So. 2d 557 (Fla. 5th DCA 1989)…tion of probation or community control cannot be used as grounds for departure from the recommended guideline sentence range. See, Franklin v. State, 545 So. 2d 851 (Fla.l989); Lambert v. State, 545 So. 2d 838 (Fla.1989). See also Dewberry v. State, 546 So. 2d 409 (Fla.1989); Branton v. State, 548 So. 2d 882 (Fla. 5th DCA 1989). The sentence is vacated and the cause is remanded for resentencing. SENTENCE VACATED; REMANDED. DANIEL, C.J., and SHARP and COWART, JJ., concur.…
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King v. State, 648 So. 2d 183 (Fla. 1st DCA 1994)…permissible.] The same 4—3 majority confirmed this decision in State v. Tuthill, 545 So. 2d 850 (Fla.1989) and a unanimous court approved this position in Franklin v. State, 545 So. 2d 851 (Fla.1989). A 6-1 majority approved it in Dewberry v. State, 546 So. 2d 409 (Fla.1989). A 6-1 majority approved it in Dewberry v. State, 546 So. 2d 409 (Fla.1989). In Hamilton v. State, 548 So. 2d 234 (Fla.1989) a 5-2 majority again held that factors relating to violations of probation cannot support departure. Lipscomb v.…1 / 2
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Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990)…ate. Since the written reasons do not support departure, defendant’s sentence is reversed and the cause remanded for resentencing within the presumptive guidelines. REVERSED and REMANDED. DAUKSCH and COWART, JJ., concur. . See Dewberry v. State, 546 So. 2d 409 (Fla.1989); Franklin.…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Dewberry v. State, 537 So. 2d 669 (Fla. 1st DCA 1989)